A counterclaim brought before the president of the tribunal judiciaire (first-instance civil court) seised under the expedited procedure on the merits (procédure accélérée au fond) is admissible only if it falls within the scope of that procedure. A judge without that power raises a plea of inadmissibility (fin de non-recevoir), and not a plea of lack of jurisdiction (exception d'incompétence). The rule is laid down in relation to the recovery of service charges (charges de copropriété) based on Article 19-2 of the Law of 10 July 1965.
Key points
- The president of the tribunal judiciaire rules under the expedited procedure on the merits only where legislation or regulations expressly confer power to hear certain claims under that procedure.
- Where that judge is seised of an action to recover service charges based on Article 19-2 of the Law of 10 July 1965, they cannot hear a counterclaim falling outside the scope of that procedure.
- This absence of judicial power gives rise to a plea of inadmissibility: the claim is declared inadmissible, and not referred to another judge under a rule of jurisdiction.
- A unit owner (copropriétaire) seeking damages from the commonhold association (syndicat des copropriétaires) must bring that claim in a framework separate from the expedited recovery of service charges.
- The judge cannot make a single award where the claimant has quantified, failing joint and several liability, two separate awards against the defendants.
Unpaid service charges and counterclaims: the dispute
A judge seised of an action to recover service charges under the expedited procedure on the merits cannot decide counterclaims falling outside that procedure (Civ. 3e, 15 January 2026, No. 24-10.778). The commonhold association of a building issued a writ of summons (assignation) for payment of service charges against two bare owners (nus-propriétaires) and the usufructuary of the same units. It acted on the basis of Article 19-2 of the Law of 10 July 1965, before the president of the tribunal judiciaire ruling under the expedited procedure on the merits.
One of the bare owners and the usufructuary brought counterclaims for damages, relating to service charges, costs and fees which they considered not to be due, and sought a set-off against the sums claimed. The usufructuary died in the course of the proceedings, and their heirs took the case over. The court of appeal (CA Rouen, 20 September 2023, No. 22/03562) declared those claims on the merits inadmissible and ordered the unit owners to pay the service charges as at 1 January 2023.
The third civil chamber rejects the first ground of appeal. Under Articles 481-1 and 839 of the French Code of Civil Procedure, that judge rules under the expedited procedure on the merits only where a provision expressly confers that power. The decision draws a precise limit from this (free translation):
It follows that, where the president of the tribunal judiciaire is seised on the basis of Article 19-2 of the Law of 10 July 1965, they may rule only within the limits of their powers and may not, on that basis, hear a counterclaim which does not fall within the scope of the expedited procedure on the merits.
The characterisation of the sanction is contained in a single sentence: "This absence of judicial power constitutes a plea of inadmissibility and not a plea of lack of jurisdiction." The Cour de cassation (France's highest civil court), by contrast, quashes the decision in part on the basis of Article 4 of the French Code of Civil Procedure, the court of appeal having disregarded the subject matter of the dispute, and remits the case to the court of appeal of Caen. It also dismisses the appeal directed against the order of 31 May 2023.
Counterclaim: what consequences for the unit owner?
A unit owner against whom a writ of summons for payment of service charges is issued under the expedited procedure on the merits cannot settle, in those proceedings, their claims for compensation against the commonhold association. Such a claim falls outside the scope which the provision assigns to that procedure. It is therefore declared inadmissible, without being examined on the merits. That outcome does not prejudge the merits of the claim: it leaves open a separate action, under the rules applicable to it.
Set-off offers no way round. The appellant before the Cour de cassation argued that a counterclaim for set-off is always admissible. The third civil chamber does not accept that analysis and rejects that line of argument in its entirety. A unit owner who wishes to assert sums which they consider to have been wrongly paid cannot therefore raise them by this route before the judge dealing with the expedited recovery of service charges.
The second lesson concerns compliance with quantified claims. The commonhold association sought, failing joint and several liability, two separate awards: one against the bare owners in respect of service charges for roofing works, the other against the usufructuary in respect of the charges as at 1 January 2023. The court of appeal ruled out joint and several liability, then made a single award against all those concerned. In doing so it disregarded the subject matter of the dispute, which is determined by the respective claims of the parties.
Plea of inadmissibility or lack of jurisdiction: the significance of the choice
The decision, which is published, adopts the plea of inadmissibility and confines the role of the judge hearing the expedited procedure on the merits. The expedited procedure on the merits is not a route open to every dispute: it requires a provision authorising it for specified claims. The sufficient connection which in principle makes a counterclaim admissible is not enough to extend the judge's powers. The sanction adopted is the plea of inadmissibility, which excludes the mechanism specific to the rules of jurisdiction relied on by the appellants.
The quashing is partial and leaves the inadmissibility of the claims on the merits in place. Only the question of the awards of payment returns to the court of appeal of Caen. The Cour de cassation also rectified of its own motion a purely clerical error (erreur matérielle) in the operative part of the decision under appeal, which named one of the heirs instead of the usufructuary. The fourth ground of appeal was rejected without specific reasons.
One question remains outside the scope of the decision: it specifies neither the court nor the procedure before which the rejected claims for compensation may be pursued. Nor does it rule on the existence of a joint and several obligation between bare owner and usufructuary, the court of appeal having merely noted that joint and several liability is not presumed and that no statutory or contractual basis had been established.
Challenging service charges: what steps to take?
The basis of the writ of summons governs the extent of what may be argued before the judge seised. A writ of summons served on the basis of Article 19-2 of the Law of 10 July 1965 opens a debate confined to the finding that the accounts or the budget have been approved, the unit owner's default and the payment of the sums due. Challenges going beyond that subject matter, in particular claims for compensation, call for consideration of the appropriate procedural framework before they are brought.
On the commonhold association's side, the drafting of the submissions bears on the outcome. An alternative claim apportioned between several debtors binds the judge, who cannot substitute a global award for it. Joint and several liability, finally, must be proved. The court of appeal had noted that it is not presumed and that the commonhold community statement (règlement de copropriété) had not been produced, which led it to rule it out between the bare owners and the usufructuary.
Checks before responding to a writ of summons for payment of service charges
- Identify the provision on which the writ of summons is based, since the expedited procedure on the merits requires express authorisation by legislation or regulations.
- Check whether the claim to be brought falls within the scope of that procedure, before putting it forward as a counterclaim.
- Keep claims for compensation unrelated to the recovery of service charges for a separate framework, including where they are presented in the form of a set-off.
- Check that the operative part corresponds to the quantified claims, in particular where joint and several liability between debtors is ruled out.
- Produce the commonhold community statement where joint and several liability is relied on in support of the claim for payment.
Frequently Asked Questions
Can a unit owner sued for service charges claim damages in the same proceedings?
Not where the action is brought before the president of the tribunal judiciaire under the expedited procedure on the merits provided for by Article 19-2 of the Law of 10 July 1965. The decision of 15 January 2026 holds that this judge cannot hear a counterclaim falling outside the scope of that procedure. The claim is then declared inadmissible, without any examination of the merits, which leaves open a separate action under its own rules.
What is the difference between an inadmissible claim and a judge lacking jurisdiction?
Inadmissibility ends the examination of the claim before the judge seised, without any ruling on the merits; a lack of jurisdiction, by contrast, designates another judge as the one who must rule. The decision of 15 January 2026 holds that the absence of judicial power of the president ruling under the expedited procedure on the merits is a plea of inadmissibility, and not a plea of lack of jurisdiction. The distinction governs how the issue must be raised.
Are the bare owner and the usufructuary jointly and severally liable for service charges?
Joint and several liability is not presumed: it requires a statutory or contractual basis. In the case decided on 15 January 2026, the court of appeal had ruled out joint and several liability between the bare owners and the usufructuary, as the commonhold association did not produce the commonhold community statement. The Cour de cassation did not rule on that point: it quashed the decision for making a single award when the association sought, failing joint and several liability, two separate awards.
What is a counterclaim and what purpose does it serve?
A counterclaim is the claim by which a defendant does not merely contest the claim brought against it, but seeks an advantage in turn: a payment, compensation, a set-off. In principle it allows connected claims to be dealt with in a single set of proceedings. It presupposes, however, that the judge seised has power to hear that claim, since some special procedures have a subject matter limited by the provision creating them.
What can be done where a decision awards a sum that does not match the claims made?
In principle the judge must rule within the limits of the parties' claims: the judge may neither grant what was not sought nor disregard the structure of the claim, in particular where it is put forward in the alternative as separate sums. A decision that disregards this subject matter may be challenged through the appeal remedies available against it. The first step is to compare the operative part with the parties' final submissions.